Com. v. Antidormi, G. ( 2019 )

J-S26035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GINO ANTIDORMI :
:
Appellant : No. 640 EDA 2018
Appeal from the PCRA Order January 24, 2018
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000334-2011
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 17, 2019
Gino Antidormi (Antidormi) appeals pro se from the order of the Court
of Common Pleas of Wayne County (PCRA court) dismissing in part and
granting in part his first petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm the PCRA court’s dismissal
of Antidormi’s ineffective assistance of counsel claims but remand for
resentencing.
I.
This Court summarized the underlying facts of Antidormi’s convictions
on direct appeal:
[Antidormi] was arrested following a July 21, 2011 incident on Mill
Brook Road in Cherry Ridge Township, Wayne County,
Pennsylvania. Early on that morning, Appellant and three other
occupants of a PT Cruiser were driving in the area and shooting
firearms out of the vehicle. In the course of these events, a bullet
was fired into a residence located at 87 Mill Brook Road. Shortly
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* Retired Senior Judge assigned to the Superior Court.
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thereafter, local residents blockaded the road with their own
vehicles and forced the joyriders to abandon their vehicle and flee
on foot. The Pennsylvania State Police were alerted that same
morning. After investigating the abandoned vehicle and
interviewing three individuals suspected of being involved in the
incident—Cody Reck, William Christopher Harper, and Gary
Stephen Burton II—the Pennsylvania State Police obtained an
arrest warrant for [Antidormi] and the three interviewees that
same day. The firearms used in the incident were recovered near
the abandoned vehicle on or about July 23, 2011.
Commonwealth v. Antidormi, 84 A.3d 736, 743 (Pa. Super. 2014).
Antidormi was charged with, among other offenses, Persons Not to
Possess Firearms. He proceeded to a jury trial on that offense and was found
guilty. After the verdict, Antidormi pleaded guilty to Recklessly Endangering
Another Person and Criminal Mischief and was later sentenced to an aggregate
six to thirteen years’ imprisonment. This Court affirmed the judgment of
sentence and our Supreme Court denied allowance of appeal.
Antidormi filed a timely pro se PCRA petition.1 Counsel was appointed
and filed an amended petition that raised ineffectiveness of counsel claims
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1 The Commonwealth argues that Antidormi’s pro se PCRA petition was
untimely. Our Supreme Court denied allowance of appeal on July 7, 2014.
Antidormi’s judgment of sentence became final on October 6, 2014, which was
the expiration of his 90 days to seek discretionary review in the United States
Supreme Court. See 42 Pa.C.S. § 9545(b)(3). Antidormi had a year to file
his PCRA petition within the date of his judgment becoming final. See 42
Pa.C.S. § 9545(b)(1). Antidormi filed his PCRA petition on October 5, 2015,
making the petition timely.
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and a challenge to Antidormi’s sentence for his firearms conviction.2 After an
evidentiary hearing, the PCRA court denied the ineffectiveness claims but
granted relief on the sentencing claim.
Before the PCRA court resentenced Antidormi, he filed a pro se notice of
appeal.3 When he returned for resentencing, the court declined to do so
because of his appeal. Antidormi later requested to proceed pro se on appeal
which the PCRA court granted after holding a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). He now raises four
issues for our review, three of which challenge the denial of his ineffectiveness
claims while the other requests that we remand for resentencing.4
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2 Antidormi’s sentencing claim was based on our Supreme Court’s decision in
Commonwealth v. Hale, 128 A.3d 781 (Pa. 2015) (juvenile adjudications
cannot be considered convictions for purposes of elevating firearms
possession to a felony). Because the grading of his firearms offense was
based in part on a felony juvenile adjudication, Antidormi argued that his
firearms conviction was illegally graded.
3 Although still represented by counsel at the time, Antidormi’s pro se notice
of appeal was docketed. See Commonwealth v. Williams, 151 A.3d 621,
623-24 (Pa. Super. 2016) (Superior Court must docket pro se notice of appeal
despite defendant being represented by counsel). The Commonwealth argues
that this is an interlocutory appeal over which we lack jurisdiction because
Antidormi has not yet been resentenced. However, this Court has stated that
a “PCRA court’s order granting relief with regard to sentencing and denying
all other claims is a final appealable order” even if resentencing has not yet
occurred. Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super.
2017).
4“Our standard of review for issues arising from the denial of PCRA relief is
well-settled. We must determine whether the PCRA court’s ruling is supported
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II.
Antidormi’s first three claims allege ineffective assistance of counsel.
Our standard of review for such allegations is well-settled:
It is well-established that counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel’s performance was deficient and that such deficiency
prejudiced him. To prevail on an ineffectiveness claim, the
petitioner has the burden to prove that (1) the underlying
substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis
for his or her actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel’s deficient performance.
The failure to satisfy any one of the prongs will cause the entire
claim to fail.
Commonwealth v. Smith, 181 A.3d 1168, 1174-75 (Pa. Super. 2018)
(citation omitted). As to the prejudice prong, this Court has explained:
it must be demonstrated that, absent counsel’s conduct, there is
a reasonable probability that the outcome of the proceedings
would have been different. If it has not been demonstrated that
counsel’s act or omission adversely affected the outcome of the
proceedings, the claim may be dismissed on that basis alone, and
the court need not first decide whether the first and second prongs
have been met.
Commonwealth v. Perez, 103 A.3d 344, 348 (Pa. Super. 2014) (internal
citations omitted).
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by the record and free of legal error.” Commonwealth v. Bush, 197 A.3d
285, 286-87 (Pa. Super. 2018) (citation omitted).
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A.
In his first claim, Antidormi argues that counsel was ineffective for failing
to have his firearms charge dismissed before trial because the Commonwealth
did not establish a prima facie case for that offense at the preliminary hearing.
Ineffective assistance of counsel claims concerning a preliminary hearing are
cognizable under the PCRA. See Commonwealth v. Stultz, 114 A.3d 865,
882 (Pa. Super. 2015). However, such claims must still “[demonstrate] that
there is a reasonable probability that, but for counsel’s error, the outcome of
the proceeding would have been different.” Commonwealth v. Pierce, 786
A.2d 203, 213 (Pa. 2001). Because he was convicted of the firearms offense,
Antidormi cannot establish prejudice. By definition, a prima facie case existed.
“[O]nce a defendant has gone to trial and has been found guilty of the crime
or crimes charged, any defect in the preliminary hearing is rendered
immaterial.” Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013).
Further, we found sufficient evidence on direct appeal to support Antidormi’s
conviction for the offense. See Antidormi, 84 A.3d at 756-57 (finding
Commonwealth presented sufficient evidence at trial to convict for Persons
Not to Possess Firearms). The claim thus fails.
B.
Next, Antidormi asserts that his trial counsel was ineffective for eliciting
otherwise inadmissible prior bad acts evidence during the cross-examination
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of a Commonwealth witness. To address this claim, we briefly review the
background of Antidormi’s trial.
Antidormi was originally represented by the Public Defender’s Office and
entered a guilty plea but later withdrew his plea and requested a jury trial.
Due to a conflict with his public defender, the trial court appointed new counsel
and set dates for jury selection and trial. After picking a jury with his court-
appointed counsel, Antidormi retained private counsel three days before trial
was set to begin. On the morning of trial, Antidormi’s new counsel entered
his appearance and requested a continuance but the trial court denied it. As
a result, Antidormi proceeded to trial with his new trial counsel.
At trial, the Commonwealth called several Pennsylvania State Police
troopers to testify as chain of custody witnesses. Antidormi’s counsel asked
all of these troopers whether any of them had ever seen Antidormi possess a
firearm. All of them testified that they had not except for Trooper John
Strelish. During his cross-examination, the following exchange took place:
Q: Have you ever seen [Antidormi], say, in the past year and
a half in possession of a firearm?
A: I don’t recall the last time I saw him in possession of a
firearm, if it was a year and a half.
Q: Well, obviously, if you saw him in possession of a firearm…
A: I did see him in possession of a firearm in the past.
Q: Did you ever see… did you arrest him?
A: Yes, I arrested him.
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Q: That’s not why we are here today, right?
A: No.
Q: But, since that time have you ever seen him in possession
of a firearm?
A: No.
See N.T., 7/16/12, AM Session—Part 2, at 26-27.
At the PCRA evidentiary hearing, Antidormi’s counsel testified that he
accepted the case under the assumption that the trial court would continue
the trial. Because the trial court did not, counsel admitted that he made errors
at trial due to lack of preparation, including asking Trooper Strelish about
previously arresting Antidormi. See N.T., 8/29/17, at 29-30.
Antidormi advances two different theories for counsel’s ineffectiveness.
Antidormi first claims that counsel was ineffective for failing to move for
mistrial or, in the alternative, request a curative instruction when Trooper
Strelish testified about the previous arrest. Antidormi also contends his
counsel was ineffective for eliciting that he was previously arrested on a
firearms charge. We find neither theory availing and address them in turn.
First, “[i]n general, a party may not object to improper testimony which
he himself elicits.” Commonwealth v. Yarris, 549 A.2d 513, 525 (Pa. 1988);
Commonwealth v. Puksar, 740 A.2d 219, 227 (Pa. 1999). When defense
counsel elicits the improper testimony, a trial court’s denial of mistrial will be
found to be proper. See Commonwealth v. Manley, 985 A.2d 256, 270-71
(Pa. Super. 2009). Antidormi’s counsel elicited the otherwise inadmissible
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testimony about him previously possessing a firearm and then specifically
asked whether it resulted in an arrest. Any motion for mistrial or, in the
alternative, a curative instruction would have been improper. Accordingly,
this theory of ineffectiveness lacks arguable merit.
Further, we do not find that there is a reasonable probability that the
outcome of the proceeding would have been different if Antidormi’s counsel
had not elicited the testimony about his prior arrest. Once Trooper Strelish
indicated that Antidormi had been previously arrested for a firearms offense,
counsel quickly withdrew from the exchange and did not dwell on the prior
arrest. Moreover, although counsel opened the door to his prior arrest, the
Commonwealth did not exploit it by asking Trooper Strelish about it on
redirect. The Commonwealth also did not comment on the prior arrest in its
closing argument even though Antidormi’s counsel’s closing highlighted the
testimony of the troopers who had never seen Antidormi possess a firearm.
Antidormi nonetheless argues that this lone remark was prejudicial
because it suggested that he had previously been arrested for the same
offense. For support, he cites Commonwealth v. Ford, 607 A.2d 764 (Pa.
Super. 1992), which involved a defendant charged with arson who moved for
mistrial when a witness revealed that the defendant had previously been
charged with arson. This Court held that the trial court should have declared
a mistrial. See id. at 767. But Antidormi fails to acknowledge that the
prejudice standard for reviewing a denial of mistrial differs from that for
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ineffectiveness of counsel. For mistrial, the prejudice inquiry focuses on
whether the defendant was deprived of a fair and impartial trial and whether
the Commonwealth intentionally elicited the remark. In contrast, prejudice
for ineffectiveness of counsel focuses on whether there is a reasonable
probability that the outcome of the proceeding would have been different
absent counsel’s acts or omissions. As a result, Ford is of little support to
Antidormi’s claim of ineffectiveness.
Further, Antidormi does not cite any case law under the PCRA involving
the circumstances involved in this case. The closest that he comes to doing
so is Commonwealth v. Wetzel, 419 A.2d 541 (Pa. 1980). There, our
Supreme Court found defense counsel ineffective for eliciting from the victim
that the defendant was on work release from jail when he committed the
offense. However, Wetzel was decided before the United States Supreme
Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), which
established the prejudice standard for ineffectiveness claims, as well as our
Supreme Court’s decision in Commonwealth v. Pierce, 527 A.2d 973 (Pa.
1987), which adopted the Strickland standard. Under the applicable
ineffectiveness standard at the time Wetzel was decided, a petitioner needed
to show only that counsel’s performance was “likely to have been
prejudicial.” Wetzel, 419 A.2d at 542 n.1. Moreover, in contrast to
Antidormi’s counsel, the defense attorney in Wetzel persisted in his
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questioning about the defendant’s incarceration, attempting to incorporate it
into his attack on the witness’s credibility.
C.
In his third and final ineffectiveness claim, Antidormi argues that
counsel was ineffective for failing to challenge the Commonwealth’s pretrial
notice of intent to admit evidence under Pa.R.E. 404(b) through the testimony
of Roseann Caridad. She testified at trial that she saw Antidormi in possession
of guns shortly before this incident. He argues that trial counsel was
ineffective for failing to (1) impeach Caridad with her prior crimen falsi
conviction and (2) request that the jury be given a crimen falsi instruction.
This claim is unreviewable.
“Any claim not raised in the PCRA petition is waived and not cognizable
on appeal.” Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007);
Pa.R.A.P. 302 (“[I]ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”). Antidormi’s May 9, 2017 amended
PCRA petition raised five ineffectiveness of counsel claims, none of which
alleged prior counsel was ineffective regarding this matter. Further, at the
evidentiary hearing, Antidormi did not develop any testimony from his
previous attorneys about Roseann Caridad. And finally, Antidormi’s brief in
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support of the amended petition provided no argument as to Roseann
Caridad.5 As a result, the claim is waived.
III.
In his last issue, Antidormi requests that this Court remand to the PCRA
court for resentencing. The PCRA court granted that relief but did not
resentence Antidormi due to him filing a notice of appeal. Under these
circumstances, we agree that a remand is warranted.
Order affirmed. Remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/19
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5 Antidormi, recognizing that this claim was not developed below, applied for
a remand before his brief was due. We denied the application without
prejudice. Antidormi’s brief argues the merits of his claim as if preserved.
Because PCRA counsel did not present this issue in the amended petition, this
third issue is, in substance, an allegation of PCRA counsel ineffectiveness, i.e.,
PCRA counsel ineffectively failed to pursue this claim in the amended petition.
It is well-settled that claims of PCRA counsel ineffectiveness cannot be raised
for the first time on appeal. See Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa. Super. 2014) (en banc).
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